in the Interest of L.D.A. and D.D.A., Children

Opinion

Opinion issued January 22, 2015.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00782-CV ——————————— IN THE INTEREST OF L.D.A. AND D.D.A., CHILDREN

On Appeal from the 312th District Court Harris County, Texas Trial Court Case No. 2000-25529

MEMORANDUM OPINION

This is an accelerated appeal from the trial court’s judgment terminating the

parental rights of D.G. to her sons, L.D.A. and D.D.A. In a single issue, D.G.

contends that the evidence is legally and factually insufficient to support the trial

court’s finding that termination of her parental rights is in the children’s best

interest. We affirm. Background

The Department of Family and Protective Services first removed D.G.’s

children from her care in 1999 and 2000. Stephanie Archer, the Department

caseworker, and Etta Pickett, the Child Advocate, testified that D.G.’s older

children were removed in 1999 and 2000—before D.D.A. and L.D.A. were born—

after her older son alleged that D.G. had physically abused him. When her

children were removed at that time, D.G. participated in the Department’s services.

L.D.A. and D.D.A. first came under the Department’s care in November

2012. On November 5, 2012, T.A., the older sister of L.D.A. and D.D.A., reported

that D.G. physically abused her. Two days later, the Department filed a petition

seeking conservatorship of L.D.A. and D.D.A. and termination of D.G.’s parental

rights. The court appointed the Department as temporary managing conservator,

and the children were placed in foster care. The family service plan reflects that

T.A. was afraid of D.G., that D.G. physically abused T.A., and that T.A. had marks

and bruises on her arm. The plan also reflected that D.G. used drugs and that

L.D.A. reported a year earlier that D.G. had hit him in the face with a belt, causing

him to bleed. The plan includes T.A.’s statement that D.G. smoked marijuana

while the children were present in the home and indicates that D.G. admitted to

using marijuana. D.G. signed the family service plan in December 2012, setting

2 forth the steps she needed to accomplish to prevent termination of her parental

rights.

Soon after L.D.A. and D.D.A. were removed from D.G.’s care in 2012, D.G.

tested positive for P.C.P. D.G. denied using P.C.P., but admitted to smoking

marijuana and conjectured that the marijuana was laced with P.C.P.

The 2012 family service plan instructed D.G. to comply with several tasks

and services, including participating in outpatient drug treatment, NA/AA

meetings, random drug testing, a drug assessment, and counseling to focus on the

“impact of drug abuse on her life and children, and also her role and responsibility

in this current CPS case.” Because D.G. completed all required services, L.D.A.

and D.D.A. returned to D.G.’s home in March of 2014.

In August 2014, the Department discovered that D.G. tested positive for

cocaine in two random drug tests in July and August 2014. As a result, the

Department removed the children on August 22, 2014 and placed D.D.A. in foster

care. At that time, L.D.A. was in juvenile detention because he had stabbed his

sister with a pocket knife. A bench trial commenced on August 26, 2014, and the

Department requested the trial court terminate D.G.’s parental rights to D.D.A. and

L.D.A.

At trial, Bruce Jefferies, an expert in interpreting drug test results, testified

that D.G.’s test results from July and August 2014 indicate that she had used

3 cocaine more than once in the 90–100 days before the test dates. But D.G. denied

using cocaine. She testified that she may have tested positive because she had

been intimate with a man who had used cocaine. But Jefferies testified that D.G.

having sexual relations with that man could not have led to her hair testing positive

for cocaine.

During trial, D.G. voluntarily participated in an independent drug test, which

was positive for cocaine. The trial court noted that the test result “very much

brings the credibility of her overall testimony as to all matters on final trial greatly

into doubt [because that] was a result obtained on her own by [D.G.]. It wasn’t a

random test by the court.”

The Department’s caseworker, Archer, and the Child Advocate, Pickett, both

testified that they did not know of any additional services that the Department

could offer D.G. Archer testified that the fact that D.G. tested positive for cocaine

after completing the 2012 family plan of service indicates that D.G. “did not fulfill

or follow the plan that was provided for her.” Archer also testified that there were

no other services that the Department could offer D.G. that she had not already

worked, which factored into the Department’s termination request. According to

Pickett, D.G. was offered “adequate services” to address the problems that caused

the children came into care, and Child Advocates did not know of any other

services that could be offered to D.G.

4 The trial court also considered evidence that L.D.A. and D.D.A. had

behavioral problems and were diagnosed with mood disorders. L.D.A has been

diagnosed with A.D.H.D., A.D.D., and bipolar disorder. D.D.A. has been

diagnosed with A.D.H.D and a reading disorder. Both children take medication for

their disorders. Archer testified that the children had behavioral problems at

school and at home while they were in foster care and once they returned home.

Archer and Pickett, however, both testified that the children’s behavior at home

improved when they returned to D.G.’s home.

Nevertheless, after they returned to D.G.’s home, the children continued to

experience problems at school. Archer and Pickett both testified that L.D.A. and

D.D.A. displayed aggression and behavioral problems. Archer and Pickett testified

that L.D.A.’s behavior at school remained the same, and Archer testified that

D.D.A.’s behavior at school worsened. Pickett testified that the children

threatened previous foster parents, fought at school with others, and fought each

other. Further, D.G. testified that L.D.A. had been suspended from school five

times and D.D.A. had been suspended twice since they returned to her care in

March of 2014.

Despite D.G.’s history of drug use and physical abuse, as well as the

children’s behavioral problems, Archer and Pickett both testified that, in their

opinions, D.G.’s rights should not be terminated. Pickett testified that returning

5 home to D.G. had a positive effect on the children and that they had a “wonderful”

and “nurturing” relationship.

Further, L.D.A. and D.D.A. wanted to remain in D.G.’s care. Archer

testified that the children “both indicated multiple times they wanted to be placed

home [with D.G.],” and that she believed that they are happy when home with

D.G. Pickett also testified that the children expressed to her that they wanted to

remain with D.G.

The trial court also considered evidence that the Department planned to

request that it be named the children’s conservator to ensure that they receive

necessary help. At the time of trial, D.D.A. was in a foster placement and L.D.A.

was in juvenile detention. There was evidence that D.D.A. was doing well in

foster care and that the Department had contacted relatives and “fictive kin,” with

whom the children could be placed. T.A.’s caregivers and D.G.’s aunt both

expressed interest in having D.D.A. placed with them.

Termination of Parental Rights

In a single issue, D.G. contends that there is legally and factually insufficient

evidence to support the trial court’s finding that termination of her parental rights

was in the children’s best interest.

6 A. Standard of Review

Clear and convincing evidence is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West

2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

In a legal-sufficiency review in a parental-rights-termination case, the

appellate court should look at all the evidence in the light most favorable to the

finding to determine whether a reasonable trier of fact could have formed a firm

belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. We

assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so, disregarding all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible. Id. If, after

conducting a legal sufficiency review of the record, we determine that no

reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true, then we must conclude that the evidence is legally

insufficient. Id.

In conducting a factual-sufficiency review in a parental-rights-termination

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a factfinder reasonably could have

formed a firm conviction or belief about the truth of the matter on which the

7 Department bore the burden of proof. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

We should consider whether the disputed evidence is such that a reasonable

factfinder could not have resolved the disputed evidence in favor of its finding. In

re J.F.C., 96 S.W.3d at 266–67. “If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding

is so significant that a factfinder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id. at 266.

B. Applicable Law

A strong presumption exists that a child’s best interest is served by

maintaining the parent-child relationship. In re A.A.A., 265 S.W.3d 507, 516 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied). In a case to terminate parental rights

under section 161.001 of the Family Code, the Department must establish, by clear

and convincing evidence, that (1) the parent committed one or more of the

enumerated acts or omissions justifying termination and (2) termination is in the

best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West 2014).

In Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the Texas Supreme Court

provided a nonexclusive list of factors that the factfinder in a termination case may

use in determining the best interest of the child. Id. at 371–72. These factors

include: (1) the desires of the child; (2) the emotional and physical needs of the

child now and in the future; (3) the emotional and physical danger to the child now

8 and in the future; (4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of

the child; (6) the plans for the child by these individuals or by the agency seeking

custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent that may indicate that the existing parent-child relationship

is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

These factors are not exhaustive, and the Department need not prove all factors as

a condition precedent to parental termination. In re C.H., 89 S.W.3d at 27; Adams

v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

“[T]he prompt and permanent placement of the child in a safe environment

is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)

(West 2014). In determining whether a parent is willing and able to provide a safe

environment, we consider several additional factors, including (1) the child’s age

and vulnerabilities; (2) developmental evaluations of the child’s parents, other

family members, and others who have access to the child’s home; (3) whether

there is a history of substance abuse by the child’s family or others who have

access to the child’s home; (4) willingness and ability of the child’s family to seek,

accept, and complete counseling services and cooperate with agency supervision;

(5) the willingness and ability of the child’s family to effect positive changes

9 within a reasonable period of time; and (6) whether the child’s family demonstrates

adequate parenting skills. In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston

[1st Dist.] 2012, no pet.) (citing TEX. FAM. CODE ANN. § 263.307(b) (West 2014)).

Evidence establishing one of the predicate acts under section 161.001(1) also may

be relevant to determining the best interest of the child. See In re C.H., 89 S.W.3d

at 28.

C. Analysis

D.G. contends that the evidence was insufficient to support the trial court’s

finding that termination is in the children’s best interest because there was

evidence that she had a positive influence on her children, that her children loved

and wanted to live with her, and that the Department had not yet found an available

placement for L.D.A. at the time of trial. We conclude that the evidence is legally

and factually sufficient to support the trial court’s finding that termination of

D.G.’s parental rights was in L.D.A. and D.D.A.’s best interest.

Evidence supporting trial court’s best interest finding

Under the second and fourth Holley factors, we consider the evidence of

L.D.A. and D.D.A.’s present and future emotional and physical needs and the

evidence regarding D.G.’s ability to parent and provide for their needs. See

Holley, 544 S.W.2d at 372. The record reflects that both L.D.A and D.D.A. have

special needs—both were diagnosed with and take medication for A.D.H.D., and

10 L.D.A. also has been diagnosed with bipolar disorder. Both children displayed

aggressive behaviors while in foster care and both had significant behavioral

problems at school both while in the Department’s care, and after returning home

to D.G., causing both children to be suspended from school numerous times since

returning home to D.G. Additionally, L.D.A. stabbed his older sister while he was

living with D.G. Further, there is strong evidence that D.G. used illegal drugs

before the Department removed the children from her care and that she continued

to use drugs once they returned to her care. Pickett testified that “Child Advocates

ha[d] grave concerns after hearing the drug test results that [D.G.] should be

allowed to care for her children,” and that she was concerned that D.G. would “be

able to meet [the children’s] needs” because “their needs [were] high.” Thus, the

evidence regarding these factors supports the trial court’s finding that termination

of D.G’s parental rights was in the children’s best interest. See In re O.R.F., 417

S.W.3d 24, 39–40 (Tex. App.—Texarkana 2013, pet. denied) (evidence of

mother’s long history of drug abuse demonstrated that it would be difficult for

mother to meet child’s high emotional needs, which required therapy because child

had difficulty focusing, trusting and bonding, and developing healthy social

relationships); In re A.C., 394 S.W.3d at 642 (“[P]attern of illegal drug use

suggests the mother was not willing and able to provide the child with a safe

environment—a primary consideration in determining the child’s best interest.”).

11 Under the third and eighth Holley factors, we consider evidence of the

emotional and physical danger to L.D.A. and D.D.A. now and in the future and the

acts or omissions of the parent that may indicate that the existing parent-child

relationship is not a proper one. See Holley, 544 S.W.2d at 372. We note that

evidence of past misconduct or neglect can be used to measure a parent’s future

conduct. See In re A.M., 385 S.W.3d at 82. Here, the trial court had before it

evidence that D.G. was physically abusive. D.G.’s family service plan includes the

details of T.A.’s allegation that D.G. hit T.A. with an extension cord, causing

bruising and lacerations to T.A.’s arm, as well as L.D.A.’s statements that D.G.

had hit him with a belt the year before, causing bleeding. Additionally, D.G.’s

older children were removed from her care in 1999 and 2000 because of

allegations that she had physically abused another son.

The trial court also considered evidence that D.G. used drugs. D.G.’s family

service plan includes T.A.’s statement that D.G. smoked marijuana at home while

her children were present. D.G. also tested positive for P.C.P. soon after the

children were removed in 2012. And D.G.’s hair tested positive for cocaine three

times since the children returned to her care in 2014. Accordingly, we conclude

that the evidence related to the third and eighth factors supports the trial court’s

best interest finding. See Walker v. Tex. Dept. of Family & Protective. Servs., 312

S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (illegal drug

12 use may support a finding of endangerment because it exposes the child to the

possibility that the parent may be impaired or imprisoned); Rochelle v. Dep’t of

Family & Protective Servs., Nos. 01-05-00311-CV, 01-05-00312-CV, 2006 WL

305002, at *8 (Tex. App.—Houston [1st Dist.] Feb. 9, 2006, no pet.) (mem. op.)

(evidence of physical abuse, including of siblings, relevant to best interest

determination).

Under the fifth factor, we consider the programs available to assist D.G. to

promote the best interests of L.D.A and D.D.A. See Holley, 544 S.W.2d at 372.

D.G. first participated in services following abuse allegations in 1999 and 2000.

The Department again provided D.G. with services after T.A.’s reporting of abuse

in 2012. Despite participating in those services, D.G. tested positive three times

for cocaine in 2014, after L.D.A. and D.D.A. returned to her home. Further,

Archer testified that D.G.’s positive test results indicated that she did not follow

the services that the Department had provided, and Pickett testified that the

services had been “adequate” to help D.G. stop using drugs. Archer and Pickett

both testified that there were no other services that the Department could offer

D.G. Because D.G. continued to use drugs after participating in programs and

there are no additional programs available to assist D.G. to promote the best

interest of her children, we conclude that the fifth factor supports the trial court’s

best interest finding. See TEX. FAM. CODE ANN. § 263.307(b)(10)–(11) (best

13 interest determination informed by parent’s willingness and ability to accept and

complete services and effect positive change within reasonable time period); In re.

J.R.W., No. 01-14-00442-CV, 2014 WL 6792036, at *8 (Tex. App.―Houston [1st

Dist.] Nov. 26, 2014, no pet.) (mem. op.) (mother’s inability to refrain from drug

use despite having completed substance abuse treatment reflected an inability to

perceive danger that parental drug use poses to a child).

With respect to the ninth Holley factor—excuses for the acts or omissions of

the parent—the evidence supports the trial court’s finding that termination is in the

children’s best interest. See Holley, 544 S.W.2d at 372. The record reflects that

D.G. failed to offer any excuses for her drug use and abusive conduct. Rather,

D.G. denied any drug use and only admitted to any use after first testing positive

for P.C.P. When she tested positive for cocaine in 2014, D.G. again denied having

used drugs. Pickett testified that “Child advocates has been concerned since the

initiation of this assignment with [D.G.] accepting responsibility for why the kids

were in care and now she’s not accepting responsibility for the positive drug test.”

Similarly, D.G. denied hitting T.A. and L.D.A., and she provided no excuses or

explanation. We thus conclude that the ninth Holley factor supports the trial

court’s best interest finding.

Viewing all of this evidence in the light most favorable to the trial court’s

judgment, we conclude that a reasonable trier of fact could have formed a firm

14 belief or conviction that termination of D.G.’s parental rights was in L.D.A. and

D.D.A.’s best interest. In re J.F.C., 96 S.W.3d at 266. Accordingly, there is

legally sufficient evidence to support the trial court’s best interest finding.

Evidence contradicting trial court’s best interest finding

Some of the evidence regarding the first, sixth, and seventh Holley factors—

the children’s desires, the Department’s plans for the children, and the stability of

the home or proposed placement—does not support the trial court’s best interest

finding. The record reflects that L.D.A. and D.D.A. wish to continue to live with

D.G., and Archer and Pickett testified that the children bonded with D.G. and

wanted to stay there. But “[e]vidence that a child loves a parent, enjoys visits, and

shows affection is marginally relevant.” In re A.M., 385 S.W.3d at 82 (citing In re

M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010, no pet.)); see In re M.Y.G.,

423 S.W.3d 504, 514 (Tex. App.—Amarillo 2014, no pet.) (children’s desires to

return to their parents were “not allowed to overrule their physical safety and

emotional health”).

Other evidence also contradicts the trial court’s best interest determination.

Pickett and Archer testified that termination was not in the children’s best interest,

the Department had not found permanent homes for L.D.A. and D.D.A. at the time

of trial, D.G. completed numerous tasks from her service plan, and the children’s

desire to remain in D.G.’s care.

15 While D.G. presented some evidence that contradicts the trial court’s best

interest finding, after considering the entire record, we nonetheless conclude that—

taken with the evidence in favor of termination, especially evidence of D.G.’s drug

use and inability to meet the children’s needs—a reasonable factfinder considering

all the evidence could have formed a firm belief or conviction that termination was

in L.D.A. and D.D.A.’s best interest. In re J.F.C., 96 S.W.3d at 266; see In re

C.H., 89 S.W.3d at 28 (“[T]he lack of evidence about definitive plans for

permanent placement and adoption cannot be the dispositive factor [in a best

interest analysis].”).

We overrule D.G.’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.